Tuesday, October 30, 2007

McCarthy on Using Someone Else's Trademark

Webcast of lecture at AU here. This was a student-oriented presentation offering an overview of permitted uses, which McCarthy argued should not all be shorthanded as "fair use."

The highlight for me was a trademark lawyer who spoke during the question period, referring with something between dismay and disdain to "this First Amendment business" and suggesting that discovery abuses were the only credible justification for a fee award for the defendant in Mattel v. Walking Mountain (the Food Chain Barbie case). We should, she suggested, be sympathetic to trademark owners sending cease & desist letters to artists etc., because they're just trying to protect the reputation of their marks -- you wouldn't want your daughter looking at Food Chain Barbie, would you? (Causing me to think, first, about the kinds of things my friends and I did to our Barbies -- Forsythe doesn't really rate on the Barbie abuse scale -- and, second, that defamation lawyers were just trying to protect the reputation of their clients, and "this First Amendment business" caught up with them too.)

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